Stewart v. Snohomish County Public Utility District No. 1

MOTION for Partial Summary Judgment

W.D. Wash.December 13, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 Honorable John C. Coughenour UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE CYNTHIA STEWART, Plaintiff, v. SNOHOMISH COUNTY PUD NO. 1, Defendant. No. 2:16-cv-00020-JCC PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT Note on Motion Calendar: January 6, 2017 ORAL ARGUMENT REQUESTED Plaintiff Cynthia Stewart moves for partial summary judgment with respect to liability on her claims brought under the Washington Law Against Discrimination (WLAD), and with respect to her status as a person with a “serious health condition” under the Family Medical Leave Act (FMLA) and Washington Family Leave Act (FLA). Although this case will ultimately be decided in a bench trial, eliminating some issues through summary judgment will allow for more efficient trial preparation for both parties, and the Court. For years, Ms. Stewart suffered from extremely painful migraine headaches for which she was forced to take prescription medications to control the pain and return to work. The Snohomish County PUD (“the PUD” or “Defendant”) knew of her condition, yet her supervisors eventually became annoyed with how much leave she took even though it was well within FMLA/WFLA intermittent use rights. Then, in October 2014, Defendant suspected that she was impaired by her physician- administered medications left her impaired, and forced her to take a drug test. That test, not surprisingly, revealed the presence of her physician-prescribed and administered medications, as Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 1 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 well as codeine that she had taken the prior evening. From that point, Defendant imposed a requirement on Ms. Stewart that she stay away from the office for four hours following administration of any “potentially impairing” medications. Ms. Stewart complied with that requirement. But a few months later, Defendant suspected her again of being impaired, and again sent her for drug testing. Not surprisingly, that test showed the presence of her prescription medications. Defendant failed to engage in any interactive process, and simply fired Ms. Stewart. Ms. Stewart had worked for the PUD for 23 years without any significant history of performance problems or customer complaints. By Defendant’s own admission, its sole reason for terminating Ms. Stewart’s employment was its perception that she came to work impaired by medications it knew her doctor had prescribed for purposes of treating her disability. While Plaintiff denies that she was ever impaired by her prescription medications at work, for purposes of this motion, the Court must assume she was. Defendant’s decision to fire Ms. Stewart because of her disability, and disability-related treatment, or disability-related conduct constitutes a blatant violation of the WLAD. Defendant will likely respond to these arguments by accusing Ms. Stewart of engaging in drug-seeking behavior, being impaired while on the job, demanding that it allow her to work while impaired, and even suggesting she is a drug addict. None of this mudslinging helps Defendant’s case, because even if the Court assumes all of these allegations are true (though they are not), Ms. Stewart still prevails under the WLAD as a matter of law. If the side effects of the medications she took to treat the symptoms of her disability left her impaired, those side effects themselves are a disability under the WLAD. Defendant was required under law to accommodate those disabilities. Instead, Defendant fired Ms. Stewart for those disabilities. The Court should grant Ms. Stewart’s motion for partial summary judgment finding liability on her WLAD claims and proceed to trial on damages. The Court should also hold that Ms. Stewart suffered a serious health condition under the FMLA and WLFA as a matter of law. Finally, Plaintiff moves for summary judgment striking a number of Defendant’s affirmative Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 2 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 defenses that fail as a matter of law. I. EVIDENCE RELIED UPON Ms. Stewart relies upon the Declaration of Samuel Kramer filed herewith and the attachments to Mr. Kramer’s declarations. All citations to exhibits herein refer to those attached to Mr. Kramer’s declaration. II. STATEMENT OF FACTS The following are the facts relevant to this motion that cannot be subject to genuine dispute, taken in the light most favorable to Defendant, the non-moving party. A. Defendant’s Fitness for Duty Policy The PUD had a “Fitness for Duty” policy that served to identify employees who might be under the influence of drugs or alcohol, and send them for testing to determine whether they were impaired. Ex. 4. Defendant provided training to management-level employees, including Ms. Stewart’s supervisors, Aaron Janisko and Sarah Scott, “to observe signs of impairment.” Ex. 1, Pg. 33, ln. 2-4, Pg. 52, ln. 18-23. Based on this training, when managers suspect impairment or safety hazard from intoxication, they fill out a one-page “Reasonable Suspicion Checklist - Documentation” that contains 67 “observed employee behavior[s]” in 11 different categories. Ex. 1, Pg. 23, ln. 13-20; Ex. 5. The PUD hires “employee assistance program” people to “come in and provide training” on how to fill out the Checklist. Ex. 1, Pg. 33, ln. 11- 14. When a manager observes any of the behaviors on the checklist, Defendant authorizes him to refer the employee for drug and alcohol testing. Ex. 1, Pg. 34, ln. 21-23. B. Ms. Stewart’s Medical Condition and Treatment Ms. Stewart suffers from chronic and debilitating migraine headaches, a condition she has dealt with for most of her adult life. Ex 1, Pg. 76, ln. 9-12. She copes with this condition in a variety of ways, but while working for Defendant, she periodically needed to take time off from work to manage her symptoms, including for the administration of pain reducing medications. Ex. 2. These medications were prescribed and administered by a physician. Id. Her physician informed the PUD that the primary medications he administered when she left work were Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 3 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 4 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 hydrocodone and Dilaudid, a narcotic prescribed for pain management that is also known as hydromorphone. Ex. 9. Prior to the events described below, Defendant accommodated Ms. Stewart’s medical condition, and approved Ms. Stewart’s use of intermittent FMLA medical leave to receive treatment for her symptoms. Defendant’s Employee Resources Manager Sara Kurtz conceded that Ms. Stewart’s migraines constituted a disability under both federal and state law. Ex. 1, P. 42, ln. 4-8. C. Defendant’s Response to Ms. Stewart’s Medical Treatments and Medical Leave Ms. Stewart was a Customer Service Representative (CSR) employed by Defendant for more than 23 years. Ex. 20, Pg. 43, ln. 2-5. In her role as a CSR, she worked with customers to address administrative concerns, either in person or over the phone. Ex. 20, Pg. 115, ln. 3-24. For a number of years, Ms. Stewart worked in the Snohomish “satellite” office, and Defendant informally accommodated Ms. Stewart by allowing her to work out her absences with her co-workers. Ex. 20, Pg. 55, ln. 22 – Pg. 57, ln. 6. By April 25, 2014, the PUD formally recognized Ms. Stewart’s need for intermittent leave in FMLA documents. Ex. 3. On October 16, 2014, Mr. Janisko called Ms. Stewart into a meeting and told her he was referring her for a “reasonable suspicion drug and alcohol test.” Ex. 6. In assessing Ms. Stewart that day, Mr. Janisko and Manager John Gregory claimed to observe the following: “slurred speech, sleepy demeanor, droopy eyelids, glassy eyes, pale skin, growly/raspy voice, fumbling movements, difficulty finding items, and scratching.” Id. Based on these observations checked off on the “Reasonable Suspicion Checklist - Documentation” form, the PUD sent Ms. Stewart to US Healthworks for drug testing. Id. The test showed the presence of the prescription medication Ms. Stewart’s doctor had administered that morning (hydromorphone) and codeine (from the night before). Ex. 7. That test gives a number, measured in nanograms (ng) per milliliter (mL), representing a concentration of the drug in the urine. The test results showed Ms. Stewart had 5776 ng/mL of hydromorphone and 15,398 ng/mL of codeine in her system at the Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 4 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 5 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 time of the test. Id. There is no medically relevant evidence in the record regarding the significance of this number, and PUD management has admitted that it has no idea what the numbers mean, or if any particular number would indicate impairment. Ex. 1, Pg. 40, ln. 3-5. Upon receiving the results of the test, the PUD placed Ms. Stewart on administrative leave, Ex. 8, then investigated her for violations of policy, including a “drug-free workplace” policy and a “fitness for duty” policy. Ex. 6. During the disciplinary investigation, Ms. Stewart’s treating physician, Dr. Philip O. Smith, M.D., wrote: “I am treating Cynthia Stewart for severe, chronic migraines. She gets frequent injection [sic] for her migraines; while they are more effective if she is able to rest after her shot, she is not impaired and is able to work without restrictions.” Ex. 2 (emphasis added). Then on November 19, 2014, in response to the PUD’s fitness for duty questionnaire, Dr. Smith stated that the medications Ms. Stewart takes for her migraines can be “sedating” and “may be impairing 3-4 hours after administration.” Ex. 9. Dr. Smith therefore suggested that she not return to work within 4 hours, and opined that under this restriction, “she can perform her duties in a safe and competent manner.” Id. He further stated that Ms. Stewart would be likely to have “intermittent positive drug screens for the medications I have administered, and that a positive screen does not necessarily indicate impairment.” Id. (emphasis added). Dr. Smith then stated he would like to be informed if the PUD observed her to be impaired at work. Id. Defendant then required Ms. Stewart to sign a “Return to Work” agreement as a condition of continued employment. Ex. 6. In the agreement, Defendant stated that Ms. Stewart had tested “positive” for her medically prescribed and administered medication, which she had taken for her migraines. Id. The letter also stated that Ms. Stewart was “impaired” at work on October 17, 2014. Id. The agreement required Ms. Stewart to prove that she was “negative for the presence of controlled substances” before returning to work, prohibited any “tests positive for controlled substances, drugs not medically authorized, alcohol or other substances which may impair job performance or pose a hazard to the safety and welfare of the employee, customers, the public or other employees as determined by the MRO,” and stated that Ms. Stewart “shall be Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 5 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 6 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 terminated” if she ever had a “second positive test for controlled substances.” Id. The “Return to Work” agreement also states the PUD would terminate Ms. Stewart if she were to “show up for work while impaired as a result of taking drugs (prescribed or not) or alcohol.” Id. The agreement further stated that a finding of impairment was to be “determined by the [Medical Resource Officer].” Id. Concurrently, Defendant revised the intermittent medical leave paperwork under the FMLA, again establishing that Ms. Stewart had a “serious health condition” that required accommodation, at least in the form of intermittent leave. Ex. 10. Specifically, Defendant recognized Ms. Stewart’s need for “Unscheduled Medical Treatment” for migraine flare-ups, and to remain out of work “for 4 hours following treatment that involves the administration of a job- impairing medication,” id., seeming to comport with Dr. Smith’s revised statement that hydromorphone may be impairing for a few hours after administration. D. Defendant’s Termination of Ms. Stewart’s Employment Ms. Stewart returned to work in January 2015. Ex. 20, Pg. 148, ln. 18-19. She transferred to Defendant’s main call center in Everett, Washington. Ex. 20, Pg. 148, ln. 10-11. In her new role, Ms. Stewart reported to Ms. Scott. Ex. 20, P. 148, ln. 16-17. Even thought she was not in human resources, Ms. Scott knew that Ms. Stewart had undergone an evaluation for alleged impairment, and was under a “Return to Work” agreement that accused her of being impaired and threatened termination for any future impairment. A few months later, on April 7, 2015, Ms. Stewart arrived at work in the morning, but soon felt a severe migraine coming on. Ex. 20, Pg. 155, ln. 11 – Pg. 156, ln. 1. Ms. Stewart sent an email to workforce personnel and her supervisor, Ms. Scott, informing them that she needed to go to the doctor for her “FMLA,” and stated she would be back in the afternoon. Ex. 1, Pg. 47, ln. 10-18. When Ms. Stewart returned more than 4 hours later, Ms. Scott called her into the office to inform her that because she had just used more than four hours of leave, she would not have enough paid leave to cover all of the days she planned to be away for an upcoming vacation to Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 6 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 7 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 see her husband run the Boston Marathon. Ex. 1, Pg. 47, ln. 10-24. Ms. Scott told Ms. Stewart that she would have to miss her vacation or re-schedule her flights. Ex. 1, Pg. 48, ln. 23 – Pg. 51, ln. 3. After Ms. Scott relayed this information to Ms. Stewart, she observed behaviors by Ms. Stewart that she had not seen from her before. Ex. 1, Pg. 51, ln. 4 – Pg. 52, ln. 8. She noticed that Ms. Stewart slurred her words, and seemed confused, drowsy, and fidgety. Ex. 1, Pg. 51, ln. 4-24. Based on her observations, Ms. Scott instructed Customer Service Manager Cyndy Nance to observe Ms. Stewart and report back to her on Ms. Stewart’s behavior. Ms. Stewart and Ms. Nance then filled out a “Reasonable Suspicion Checklist – Documentation” form. Ex. 5. They checked 13 different “observations” they claimed to have made, including two observations that Ms. Stewart seemed “calm,” and added others in the margins. Id. That same afternoon, Ms. Scott and Ms. Kurtz called Ms. Stewart into a “fact finding meeting” where they told her she was being referred for drug testing. Ex. 1, Pg. 53, ln. 19-24. Ms. Stewart explained that she had taken her prescription medication at her doctor’s office that morning, and had returned more than four hours later, as per her doctor’s instructions. Ex. 1, Pg. 25, ln. 21 – Pg. 26, ln. 20. During this meeting, Ms. Scott and Ms. Kurtz noted that Ms. Stewart was confused and did not know the names of her medications. Ex. 1, Pg. 26, ln. 9-14, Pg. 53, ln. 25 – P. 54, ln. 12. Ms. Scott then drove Ms. Stewart to US Healthworks for drug testing. P. 54, ln. 18-22. The test showed the presence of hydromorphone, this time at a concentration of 4517 ng/mL. Ex. 12. Defendant stated that based on the testing results and the observations of PUD managers, it concluded that she came to work “impaired by a prescription narcotic.” Ex. 11. No “Medical Review Officer” made a determination that Ms. Stewart was impaired at work, as required by the Fitness for Duty Policy and the “Return to Work” agreement. Ex. 4, Ex. 6. After Defendant received the results of the test, it issued a “Proposed Termination of District Employment” letter. Ex. 11. Ms. Stewart responded with a letter explaining that her medical condition constituted a disability, and that the PUD’s actions were discriminatory. Ex. Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 7 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 8 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 13. Defendant then terminated Ms. Stewart’s employment for testing positive for a controlled substance (her prescription medication), and for showing up to work impaired. Ex. 14. In Ms. Stewart’s termination letter, Defendant explained: Your response focuses primarily on your position that you have a medical condition that constitutes a disability and, therefore, the District’s actions in sending you for a reasonable suspicion test and in proposing termination are discriminatory. While your medical condition may constitute a disability that is protected under the Americans with Disability Act (ADA) and the Washington Law Against Discrimination (WLAD), being at work under the influence of narcotic medication (whether lawfully prescribed or not) and demonstrating impairment is not protected. Id. In response to Plaintiff’s First Set of Interrogatories, Defendant confirmed that its reasons for terminating Ms. Stewart’s employment were stated in these letters, and identified no other reasons for its decisions. Ex. 15, Def. Response to Plaintiff’s Interrogatory No. 2. The sole reason Defendant gave in the letters explaining its decision to terminate Ms. Stewart’s employment was that she violated the Return to Work agreement by coming to work while impaired on April 7, 2015. Ex. 13; Ex. 14. III. ARGUMENT A. Summary Judgment Standard “A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought.” Fed. R. Civ. P. 56(a). Summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2509 (1986). When deciding a motion for summary judgment, the Court takes all facts and reasonable inferences to be drawn from those facts in the light most favorable the nonmoving party. Anderson, 477 U.S. at 255. B. The PUD is Liable for Violations of the Washington Law Against Discrimination as a Matter of Law. Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 8 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 9 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 The WLAD prohibits discharge and discrimination in the terms and conditions of employment on the basis “of any sensory, mental, or physical disability.” RCW 49.60.180(2), (3). “There are two types of disability discrimination claims: disparate treatment and failure to accommodate.” Clipse v. Commercial Driver Servs., Inc., 189 Wn. App. 776, 792, 358 P.3d 464, 472 (2015), review denied, 185 Wash. 2d 1017, 367 P.3d 1084 (2016) (citing Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P.3d 930 (2004); and Brownfield v. City of Yakima, 178 Wn.App. 850, 873, 316 P.3d 520 (2014)). Ms. Stewart has claimed both disparate treatment and failure to accommodate. See Complaint ¶ 5.2. Under either theory, a plaintiff must show that she has a “disability,” and that the employer was on notice of that disability. A plaintiff must then show that the employer treated the employee less favorably because of her disability, or that the employer failed to reasonably accommodate that disability to allow the employee to perform the essential functions of the job. 1. Ms. Stewart has a “disability” covered by the WLAD and a “serious health condition” covered by the FMLA and the WFLA. The WLAD defines “disability” as a “sensory, mental, or physical impairment.” RCW 49.60.040(7)(a). The statute defines “impairment” broadly to include any “physiological disorder, or condition, cosmetic disfigurement, or anatomical loss” affecting the body’s systems. RCW 49.60.040(7)(c). A disability exists under RCW 49.60 “whether it is temporary or permanent, common or uncommon, mitigated or unmitigated[.]” RCW 49.60.040(7)(b). Ms. Stewart’s migraines fall squarely within the WLAD definition of “disability.” Indeed, Defendant acknowledged that Ms. Stewart was disabled both in its FMLA paperwork, and through the sworn testimony of Ms. Kurtz. Ms. Kurtz’s conclusion was an accurate interpretation of the law. See Kimbro v. Atl. Richfield Co., 889 F.2d 869, 874 (9th Cir. 1989) (“we find no error in the district court's finding that Kimbro suffered from a handicap within the meaning of [the WLAD]” based on his migraine headaches). In addition, any impairing side effects Ms. Stewart suffered from the prescription medication she took to treat her migraines independently qualify as a disability under the Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 9 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 10 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 WLAD. Division III of the Washington Court of Appeals recently held that “the side effects of a prescription drug may constitute a disability, so long as those side effects meet the statutory definition.” Clipse, 189 Wn. App. at 793. In Clipse, the court found that the plaintiff’s evidence of the impairing physical side effects caused by methadone established a prima facie claim that he had a disability under the WLAD, and that the employer unlawfully fired him because of it. Id. at 793-94. Under Clipse, any perceived or alleged impairment resulting from Ms. Stewart’s prescription medications also qualifies as a disability under the WLAD. For the same reasons, Ms. Stewart’s migraines and the side effects of her prescription medications also qualify as “serious health conditions” under the FMLA and WFLA. 1 Entitlement to leave under the FMLA and WFLA requires the presence of a “serious health condition.” 29 U.S.C. § 2612(a)(1)(D); RCW 49.78.220(1)(d). The FMLA defines “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Where, as here, an employee seeks to take leave because of “continuing treatment by a health care provider,” that employee qualifies for leave if she has a “chronic serious health condition.” See 29 C.F.R. § 825.115(c). A “chronic serious health condition” is one which requires period visits for treatment by a health care provider, continues over an extended period of time, and may cause episodic incapacity. Id. The regulations define “incapacity” as “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom.” 29 C.F.R. § 825.113(b). Ms. Stewart had a serious medical condition because she suffered from chronic migraines that required regular treatment by a physician, and periodically made her unable to work for a short period of time. Ms. Stewart’s migraines and the side effects she experienced due to her prescription medication were both disabilities under the WLAD and serious health conditions under the 1 While this motion focuses primarily on Plaintiff’s disability claims under the WLAD, the Court should also hold that Plaintiff had a “serious health condition” under the FMLA and the WFLA to further narrow the issues for trial. Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 10 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 11 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 FMLA and WFLA. C. Defendant failed to provide a reasonable accommodation for Ms. Stewart’s disability as required under the WLAD. “To eliminate discrimination in the workplace, state law requires employers to reasonably accommodate a disabled employee unless the accommodation would be an undue hardship on the employer.” Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P.3d 930 (2004). Specifically, under the Washington Law Against Discrimination (WLAD), an employer has an obligation to reasonably accommodate the sensory, mental, or physical limitations of a disabled employee. Havlina v. Washington State Dept. of Transp., 142 Wn. App. 510, 517, 178 P.3d 354 (2007); see also RCW 49.60.030(1)(a). The disability laws affirmatively require that an employer provide disabled employees a reasonable accommodation to allow them to do their jobs and remain in the workforce. See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1095 (9th Cir. 2007) (“[T]he law often does provide more protection for individuals with disabilities… That’s why the ADA and Washington Law require employers to make reasonable accommodations for disabilities.”) (emphasis in original). A plaintiff alleging discrimination based on a failure to provide a reasonable accommodation must show that: (1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality. Riehl, 152 Wash. 2d at 145 (citing Hill v. BCTI Income Fund–I, 144 Wash.2d 172, 192-93, 23 P.3d 440 (2001); Davis v. Microsoft Corp., 149 Wash.2d 521, 532, 70 P.3d 126 (2003)). Ms. Stewart can satisfy all four elements, and is thus entitled to summary judgment on her failure to accommodate claim. Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 11 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 12 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 a. Ms. Stewart’s disability substantially limited her ability to perform her job. As established above, Ms. Stewart’s migraines qualify as a disability under the WLAD. For purposes of qualifying for a reasonable accommodation though, an employee must also show that the disability has a “substantially limiting effect” on her ability to do her job. RCW 49.60.040(7)(d)(i). It is uncontested that Ms. Stewart’s disability substantially limited her ability to do her job. As described above, Ms. Stewart regularly experienced serious symptoms as a result of her migraine headaches. During these flare ups, she experienced excruciating pain that made it impossible for her to be in the workplace at all, let alone do her job. Indeed, the symptoms were so debilitating that she had to receive medical treatment in order to return to work and go on with her daily life. Defendant recognized this and approved Ms. Stewart’s application for intermittent FMLA leave on multiple occasions during her tenure. Defendant also asserts that the prescription drugs Ms. Stewart took were so impairing that she was not fit for duty in the hours after she took them. By so asserting, Defendant essentially concedes that one of Ms. Stewart’s disabilities – the side effects of her prescription drugs – substantially limited her ability to perform her job. b. Ms. Stewart was qualified to perform the essential functions of her job. Defendant has produced no evidence showing Ms. Stewart was not qualified to perform her job, except with respect to her alleged impairment, so there is no issue of material fact as to her qualifications. c. Defendant was on notice of Ms. Stewart’s disability. Ms. Stewart must also show that Defendant was on notice of the disability and was apprised through medical documentation that she likely could not perform her job without an accommodation, RCW 49.60.040(d)(ii). Before October 17, 2014, Defendant knew Ms. Stewart suffered migraines and occasionally had to leave work to receive treatment for her symptoms. Then after, October 17, 2014, Ms. Stewart submitted numerous documents detailing her Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 12 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 13 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 physician’s assessment of her condition, and how it impacted her ability to work. All of this put Defendant on notice of Ms. Stewart’s disability. d. Defendant did not accommodate Ms. Stewart’s disability. Once the PUD learned of Ms. Stewart’s disabilities, and knew that it substantially limited her ability to perform her job, it had a duty to reasonably accommodate those disabilities. “A reasonable accommodation must allow the employee to work in the environment and perform the essential functions of her job without substantially limiting symptoms.” Frisino v. Seattle School District, 160 Wash. App. 765, 777-78 (Div. 1 2011). The WLAD requires employers on notice of an employee’s disability to engage in an “interactive process,” in which there is “an exchange between employer and employee, where each party seeks and shares information to achieve the best match between the employee's capabilities and available positions.” Id. at 779. Beginning with the October 17, 2014, incident, Defendant failed to engage in an interactive process to find a reasonable accommodation for Ms. Stewart’s disability, instead choosing a disciplinary process for the side effects of taking prescription medication. Defendant’s approval of Ms. Stewart’s intermittent FMLA and the parallel “Return to Work” agreement simultaneously recognized Ms. Stewart’s need for medical treatment for migraine headaches, and placed her under threat of termination should she be suspected of impairment related to that medical treatment. These documents further stated that in accordance with the recommendations of Dr. Smith, Ms. Stewart should not return to work for four hours following the administration of these medications so as to ensure she would not be impaired while on the job. Although Defendant failed to couch this in the language of reasonable accommodation, this step could be viewed as the first in the interactive process to find a reasonable accommodation for Ms. Stewart, but the Return to Work Agreement is a disciplinary document, not an accommodation document. The disciplinary Return to Work agreement then set Ms. Stewart up for unlawful termination. On April 7, 2015, Defendant concluded that Ms. Stewart returned to work impaired and terminated her, despite the fact that she followed the four-hour waiting period recommended Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 13 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 14 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 by her doctor and approved by the PUD. At that point, the interactive process required Defendant to work with Ms. Stewart to find a better accommodation. Id. at 781 (“the duty to accommodate is continuing. The employer may wish to test one mode of accommodation and then test another, if the first mode fails. Or, if the attempt to accommodate is not effective, one or more additional attempts may be undertaken.”). Potential alternatives to the four-hour requirement are not difficult to conjure. Defendant could have required Ms. Stewart to stay away from work for five or six hours after the administration of her medication. Given Dr. Smith’s explanation that the effects of Ms. Stewart’s medications were time limited, attempting a longer wait time would have been a natural next step in the interactive process. Defendant ignored these readily-apparent options, and instead chose a disciplinary process over an interactive one. Defendant did not discuss any alternative accommodations with Ms. Stewart on or after April 7, 2015. Instead, it forced her to take another drug test, placed her on leave, and terminated her employment. In the ADA context, courts have rejected the substitution of discipline for the interactive process. The court’s decision in Weaving v. City of Hillsboro, an ADA case, is instructive. There, the plaintiff was placed on leave after a coworker filed a hostile work environment complaint against him. No. 10-CV-1432-HZ, 2012 WL 526425, at *2 (D. Or. Feb. 16, 2012) (unpublished disposition). During an internal investigation of the complaint, the plaintiff submitted medical documentation of his diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and a request that his disability be accommodated. Id. The plaintiff’s employer decided this information was not salient to the investigation, and did not engage in an interactive process, instead requiring the plaintiff to complete two fitness for duty evaluations. Id. at *3. Both evaluators corroborated the ADHD diagnosis and found that it helped explain the plaintiff’s issues that led to the complaint, but the employer still chose not to engage in an interactive process, instead terminating the plaintiff’s employment. Id. On a motion for summary judgment, the employer argued that it did not have to engage in an interactive process because the request for accommodation came after the plaintiff was under investigation for misconduct, Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 14 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 15 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 but the court disagreed. Id. at *11-12. The court noted that EEOC guidance on interactive process makes it clear that although an employer is not required to excuse past misconduct, it must make a reasonable accommodation to enable a disabled employee to meet that conduct standard in the future. Id. at *12 (citing EEOC Guidance, 1997 WL 34622315, at *15). The court held that the defendant could discipline the plaintiff for past misconduct, but once it knew that the misconduct resulted from the plaintiff’s disability, it had to engage in an interactive process to identify an accommodation that would prevent the same misconduct from happening in the future. Id. See also, Reese v. Barton Healthcare Sys., 693 F. Supp. 2d 1170, 1187 (E.D. Cal. 2010) (finding the fact that an employer only discussed potential accommodations in a disciplinary meeting, when coupled with delays in discussing those options was sufficient evidence for a reasonable juror to conclude the interactive process was not in good faith). Here, the PUD’s conduct was even more contrary to the requirements of the WLAD. Defendant punished Ms. Stewart for being impaired on the job on October 17, 2014. Through its investigation, it learned that Ms. Stewart needed a reasonable accommodation. But rather than provide an accommodation, it imposed a Return to Work agreement that put her under threat of termination if she ever exhibited impairing signs of her migraine headaches again. The PUD then terminated her for the same disability-related conduct that it punished her for the first time, rather than engage in an interactive process to find a more effective accommodation. In so doing, the PUD both failed to engage in the interactive process, and failed to afford a reasonable accommodation for her disability. Ms. Stewart had a disability that substantially limited her ability to do her job, for which she was otherwise qualified. Defendant knew of this, and yet failed to engage in an interactive process to identify and implement a reasonable accommodation for Ms. Stewart’s disability. There is no dispute as to a material issue of fact on any of these questions, so summary judgment is appropriate on Ms. Stewart’s failure to accommodate claim. Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 15 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 16 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 D. Defendant discriminated against Ms. Stewart by terminating her employment because of her disability. The WLAD also prohibits employers from discharging employees because of “the presence of any sensory, mental, or physical disability.” RCW 49.60.180(2). The Washington Pattern Instructions (WPI) identify three elements to a claim for disparate treatment based on disability: (1) that the plaintiff was disabled or perceived as disabled, (2) that she was able to perform the essential functions of the job in question, and (3) that her disability was a substantial factor in the employer’s decision to terminate her. WPI 330.32. Having already established the first two elements of this claim, the only remaining question is whether Ms. Stewart’s disability was a “substantial factor” in Defendant’s decision to fire her. In a typical disparate treatment case, deciding whether Ms. Stewart’s disability was a substantial factor in Defendant’s decision would involve the weighing of circumstantial evidence as to whether Defendant’s proffered reason for the decision was pretext. This is not, however, a typical case. Rather, even if the Court accepts Defendant’s proffered reason for terminating her employment as fact – as it must in reviewing this motion for summary judgment – Ms. Stewart still prevails on her disparate treatment claim as a matter of law because Defendant’s proffered reason is facial discrimination that violates the WLAD. Defendant has asserted in no uncertain terms that it terminated Ms. Stewart’s employment because it perceived her as impaired at work by the prescription medication she took to manage her migraine headaches. While the PUD might contend that Ms. Stewart’s impairment justifies its actions and is a defense to liability, the law states the opposite. The PUD’s actions, expressly taken because of perceived impairment related to migraine headache medications, is discriminatory and violates the WLAD. Two WLAD cases are instructive, if not controlling. The first is Gambini, a Ninth Circuit opinion addressing a WLAD disability claim. In Gambini, the employer terminated a worker diagnosed with bipolar disorder who had a breakdown at the office. 486 F.3d at 1091-92. Aware of the diagnosis, the employer perceived the employee to be performing poorly and put her on a performance improvement plan because her “attitude and general disposition [were] no Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 16 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 17 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 longer acceptable.” Id. at 1091. Confronted with that news, the employee began to cry and shake. Id. She threw the written improvement plan across the room, hurled several profanities at her supervisor while asserting the plan was unfair and unwarranted, and slammed the door on her way out of a meeting. Id. at 1091-92. She returned to her cubicle and kicked and threw objects. Id. at 1093. The next day, she checked herself into a hospital for treatment of her mental disorder. Id. The employer then fired her. Id. At trial, the jury returned a verdict for the defendant, and the judge denied the plaintiff’s motion alternatively seeking judgment as a matter of law or a new trial. Id. at 1090. Applying the WLAD, the Ninth Circuit explained that “conduct resulting from a disability is part of the disability and not a separate basis for termination.” Id. at 1093 (quoting Riehl, 94 P.3d at 938). The court then held that because the outburst was attributable to the mental health disorder, a jury could find that one of the “substantial reasons” she was terminated was her bipolar disorder. Id. at 1095. The court said: “if the law fails to protect the manifestations of her disability, there is no real protection in the law because it would protect the disabled in name only.” Id. Because the trial court’s jury instructions failed to explain that conduct resulting from a disability is part of the disability and cannot be separate grounds for termination, the Ninth Circuit remanded for a new trial. Id. at 1099. The same is true here. Defendant admits that it terminated Ms. Stewart for being impaired at work after receiving a prescription medication from her physician to treat the symptoms of her migraine headache. 2 Defendant knew that Ms. Stewart left work for that purpose, and it was confirmed when her drug test came back positive for the drug Dr. Smith had informed Defendant that he administers to treat Ms. Stewart’s symptoms. Ms. Stewart’s impairment was therefore simply conduct resulting from her disability that cannot be grounds for discipline under Gambini. Indeed, discipline under these circumstances violates 2 For purposes of this motion, the Court must also accept, as fact, that Ms. Stewart was impaired on both October 17, 2014, and April 7, 2015. This motion treats that assertion as fact, though Ms. Stewart strongly disputes that fact and can present evidence at trial to establish that it is untrue. Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 17 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 18 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 the WLAD, per se. More recently, in Clipse the court held “the side effects of a prescription drug may constitute a disability, so long as those side effects meet the statutory definition.” Clipse, 189 Wn.App. at 793. Clipse involved a commercial driving school’s revocation of its offer of employment to a commercial truck driver. Id. at 781-82. After the school offered the driver a job as an instructor, he quit his existing job. Id. at 781. During a pre-employment physical examination, the driver tested positive for his prescribed narcotic, methadone, which he was taking for pain related to a torn rotator cuff. Id. At trial, the jury returned a verdict for the plaintiff. Id. at 783. Again applying the WLAD, the Court of Appeals held that the side effects of a prescription drug constituted a disability in need of accommodation: To constitute a “disability” under the statute, taking methadone must constitute a “sensory, mental, or physical impairment.” RCW 49.60.040(7). “Impairment” is defined as a non-exclusive list of terms including any “physiological disorder, or condition, cosmetic disfigurement, or anatomical loss” affecting the body's systems, or any “mental, developmental, traumatic, or psychological disorder.” RCW 49.60.040(7)(c). Thus, under the plain language of the statute, any mental or physical condition may be a disability. RCW 49.60.040(7). We apply this plain language and construe the statute liberally to effectuate its purpose of remedying disability discrimination. Martini, 137 Wash.2d at 364, 971 P.2d 45; Davis, 171 Wash.App. at 360, 287 P.3d 51. Thus, we hold that the side effects of a prescription drug may constitute a disability, so long as those side effects meet the statutory definition. Id. at 792–93. The Clipse court found that the driver’s evidence of the impairing physical side effects caused by methadone established a prima facie claim that he had a disability under the WLAD, and that the employer unlawfully fired him because of it. Id. at 793-94. The Court of Appeals held that there was sufficient evidence to support the jury verdict. Id. at 795. The facts of Clipse closely track those of Ms. Stewart’s case. As in Clipse, Defendant believed that the impairing side effects of Ms. Stewart’s prescription medication made her unfit for duty. Under Clipse, terminating an employee for that reason is a violation of the WLAD. The Ninth Circuit has found circumstances such as these, where an employer’s failure to Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 18 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 19 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 accommodate a disabled worker ultimately results in a termination, to be particularly strong evidence of discrimination. In Humphrey v. Mem’l Hosps. Ass’n, an ADA case, the Ninth Circuit stated that “[t]he link between the disability and termination is particularly strong where it is the employer’s failure to reasonably accommodate a known disability that leads to discharge for performance inadequacies resulting from that disability.” 239 F.3d 1128, 1140 (9th Cir. 2001). In support of this argument, the court cited Kimbro, in which it had previously found there was a causal connection between the employee’s disability and termination where the employee was fired because of absenteeism that was caused by the employee’s migraine headaches. 889 F.2d at 875. In Kimbro, the court held that because the employer fired the employee for conduct resulting from his disability, there was evidence of a causal connection between the employee’s disability and the employer’s decision to fire him. Id. Similarly here, Defendant has justified its termination of Ms. Stewart’s employment by pointing to her alleged impairment. That impairment was conduct resulting from her disability, just as the employee’s absenteeism in Kimbro resulted from his disabling migraines. In Humphrey and Kimbro, the Ninth Circuit held that when an employer cited such a reason to justify its termination of an employee, it violated the ADA. Under these cases, the law is well-established: an employer cannot discipline or fire an employee for conduct that results from a disability, including conduct attributable to the side effects of prescription medication. Doing so constitutes discriminatory discharge. Defendant has given only one reason for terminating Ms. Stewart’s employment: her impairment. In giving that reason, Defendant has conceded it violated the WLAD by discharging Ms. Stewart for discriminatory reasons. The Court should so hold as a matter of law. E. Defendant’s affirmative defenses are unavailing. In its Answer to the Amended Complaint, Defendant asserts several affirmative defenses on which summary judgment for Ms. Stewart is appropriate. a. Defendant has not shown that Ms. Stewart failed to mitigate her damages. Under Washington law, a defendant asserting a failure to mitigate defense has the burden Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 19 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 20 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 of proof. See Henningsen v. Worldcom, Inc., 102 Wn. App. 828, 846, 9 P.3d 948, 958 (Div. 1 2000). To satisfy this burden, a defendant “must show that there were suitable positions available and that the plaintiff failed to use reasonable care and diligence in seeking them.” Kloss v. Honeywell, Inc., 77 Wn.App. 294, 301, 890 P.2d 480, 485 (Div. 1 1995) (quoting Burnside v. Simpson Paper Co., 66 Wn.App. 510, 529–30, 832 P.2d 537 (Div. 1 1992), aff’d, 123 Wn.2d 93, 864 P.2d 937 (1994)). Defendant failed to meet this burden. In response to an interrogatory requesting that it state each fact in support of its mitigation defense, Defendant did not list any suitable positions available to Ms. Stewart which she failed to seek. See Ex. 16, Def. Response to Plaintiff’s Interrogatory No. 4. Rather, Defendant’s response to this inquiry merely repeated its defense to Ms. Stewart’s disparate treatment claim. As such, Defendant has failed, as a matter of law, to sustain this defense, and the Court should strike it. b. Defendant has failed to produce any evidence in support of the affirmative defenses of business necessity and bona fide occupational qualification (BFOQ). In response to interrogatories seeking the identification of any facts supporting the affirmative defenses of business necessity and bona fide occupational qualification (BFOQ), Defendant stated that Ms. Stewart would be unable to clearly and effectively communicate with customers, exercise good judgment, or understand and respond to customer concerns if she arrived to work while impaired. Ex. 17, Def. Response to Plaintiff’s Interrogatories Nos. 9, 10. These conclusory assertions do not support either affirmative defense, and are not supported by evidence. Defendant has produced no documents, nor made any statements in depositions to suggest that Ms. Stewart was the subject of any customer complaints, or discipline that resulted from her performance suffering while impaired. As such, Defendant has failed to produce evidence to support the defense that it could not accommodate Ms. Stewart’s disability because of a business necessity, or because her disability prevented her from meeting a BFOQ. Furthermore, it is legally dubious that a BFOQ defense could ever be appropriate in a disability discrimination case. The Court should strike these defenses. Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 20 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 21 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 c. Defendant has failed to produce any evidence in support of its undue hardship defense. Defendant’s only stated basis for its undue hardship defense is that Ms. Stewart’s request for an accommodation amounted to asking to be permitted to work while impaired or under the influence of drugs. See Ex. 18, Def. Response to Plaintiff’s Interrogatory No. 11. As discussed at length above, Ms. Stewart did not request that she be allowed to work while impaired. She merely asked that Defendant accommodate her disability so she could receive treatment and return to work after any risk of impairment had passed. Indeed, Defendant never went through the necessary interactive process to determine whether accommodating Ms. Stewart’s disability any further than it already had would have created an undue hardship. Defendant has produced no evidence to suggest that such an accommodation was or would have been an undue hardship. Defendant’s undue hardship defense is based on a strawman argument that is not supported by any evidence. The Court should strike this defense. d. Defendant’s affirmative defense that Ms. Stewart failed to control a controllable disability has no legal basis. Defendant appears to refer to a defense announced in Siefken v. Vill. of Arlington Heights, 65 F.3d 664, 667 (7th Cir. 1995). In Siefken, the Seventh Circuit held that “when an employee knows that he is afflicted with a disability, needs no accommodation from his employer, and fails to meet the employer’s legitimate job expectations, due to his failure to control a controllable disability, he cannot state a cause of action under the ADA.” Id. (internal citations and quotations omitted). Setting aside the fact that there is no Washington or Ninth Circuit case law recognizing this defense, it is also inapplicable to the facts of this case. Ms. Stewart’s situation was not one in which she “need[ed] no accommodation.” Defendant recognized her need for an accommodation when it granted her intermittent FMLA leave and required her to stay away from work for four hours after she received injections of her prescribed medication. As such, this defense is inapplicable here, and the Court should strike it. Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 21 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 22 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 e. Defendant has failed to produce any evidence in support of several of its other affirmative defenses. Defendant also failed to produce any evidence to support the following affirmative defenses that it asserted in its Answer: Ms. Stewart’s damages were caused by her own acts or omissions, or the acts or omissions of persons or entities other than the defendant; after-acquired evidence; and the doctrines of estoppel, waiver, laches, and/or unclean hands. In response to discovery requests, Defendant failed to identify any facts to support these defenses. See Ex. 19, Def. Response to Plaintiff’s Interrogatories Nos. 5-7. The Court should therefore strike these defenses so the parties need not address them at trial. IV. CONCLUSION For the foregoing reasons, the Court should grant Ms. Stewart’s motion for partial summary judgment on her WLAD claims as a matter of law, hold that she suffered a serious health condition under the FMLA and WLFA as a matter of law, and find that Defendant’s affirmative defenses fail as a matter of law. DATED this 13th day of December, 2016. MacDONALD HOAGUE & BAYLESS By: /s/ Sam Kramer Sam Kramer, WSBA # 50132 samk@mhb.com Joe Shaeffer, WSBA # 33273 joe@mhb.com Katherine C. Chamberlain, WSBA #40014 katherinec@mhb.com Attorneys for Plaintiff Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 22 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 23 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108504 CERTIFICATE OF SERVICE The undersigned certifies under penalty of perjury according to the laws of the United States and the State of Washington that on this date I caused to be served in the manner noted below a copy of PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT on the following individual(s): Attorneys for Snohomish County PUD No.: 1 Suzanne K. Michael, WSBA No. 14072 Cindy M. Lin, WSBA No. 42959 Michael & Alexander, PLLC 701 Pike Street, Suite 1150 Seattle, WA 98101 Phone: 206-442-9696 Facsimile: 206-442-9699 Email: Suzanne@michaelandalexander.com Email: Cindy@michaelandalexander.com Email: Lois@michaelandalexander.com Email: Monica@michaelandalexander.com [x] Via Electronic Case Filing System (ECF) [ ] Via Facsimile [ ] Via First Class Mail [ ] Via Email – Per Email Service Agreement [ ] Via Messenger [ ] Via Overnight Delivery DATED this 13th day of December, 2016 at Seattle, Washington. /s/ Esmeralda Valenzuela Esmeralda Valenzuela, Legal Assistant Case 2:16-cv-00020-JCC Document 24 Filed 12/13/16 Page 23 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108507 Honorable John C. Coughenour UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE CYNTHIA STEWART, Plaintiff, v. SNOHOMISH COUNTY PUD NO. 1, Defendant. No. 2:16-cv-00020-JCC [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT This matter, having on before this Court upon Plaintiff Cynthia Stewart’s Motion for Partial Summary Judgment, the Court having heard argument of counsel, having reviewed the records and files herein, including: 1. Plaintiff’s Motion for Partial Summary Judgment; 2. Declaration of Sam Kramer in Support of Plaintiff’s Motion for Partial Summary Judgment; 3. Defendants’ responsive pleadings; and 4. Plaintiff’s reply pleadings and being fully advised; now, therefore, it is hereby ORDERED that Plaintiff Cynthia Stewart’s Motion for Partial Summary Judgment shall be, and hereby is, GRANTED. Case 2:16-cv-00020-JCC Document 24-1 Filed 12/13/16 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108507 DATED this ______ day of __________, 20__. Honorable John C. Coughenour Presented by: MacDONALD HOAGUE & BAYLESS By: /s/ Sam Kramer Sam Kramer, WSBA # 50132 samk@mhb.com Joe Shaeffer, WSBA # 33273 joe@mhb.com Katherine C. Chamberlain, WSBA #40014 katherinec@mhb.com Attorneys for Plaintiff Case 2:16-cv-00020-JCC Document 24-1 Filed 12/13/16 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 No. 2:16-cv-00020-JCC MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104 Tel 206.622.1604 Fax 206.343.3961 11020.1 je108507 CERTIFICATE OF SERVICE The undersigned certifies under penalty of perjury according to the laws of the United States and the State of Washington that on this date I caused to be served in the manner noted below a copy of [PROPOSED] ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT on the following individual(s): Attorneys for Snohomish County PUD No.: 1 Suzanne K. Michael, WSBA No. 14072 Cindy M. Lin, WSBA No. 42959 Michael & Alexander, PLLC 701 Pike Street, Suite 1150 Seattle, WA 98101 Phone: 206-442-9696 Facsimile: 206-442-9699 Email: Suzanne@michaelandalexander.com Email: Cindy@michaelandalexander.com Email: Lois@michaelandalexander.com Email: Monica@michaelandalexander.com [X] Via Electronic Case Filing System (ECF) [ ] Via Facsimile [ ] Via First Class Mail [ ] Via Email – Per Email Service Agreement [ ] Via Messenger [ ] Via Overnight Delivery DATED this 13th day of December, 2016 at Seattle, Washington. /s/ Esmeralda Valenzuela Esmeralda Valenzuela, Legal Assistant Case 2:16-cv-00020-JCC Document 24-1 Filed 12/13/16 Page 3 of 3